EXHIBIT 10.17
[LOGO OF HAHT COMMERCE] Non-executable Copy
HAHT e-Scenario(TM) License Agreement
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This e-Scenario license agreement (the "License") is made and entered into as of
date ("Effective Date") between HAHT Commerce, Inc., a Delaware corporation
having its principal office at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000
("HAHT"), and customer name, a insert state of incorporation corporation having
its principal office at customer's address ("Licensee"). HAHT hereby grants to
Licensee and Licensee accepts, a non-exclusive, non-transferable license to use
the HAHT e-Scenario software as specified on Schedule A, as may be amended by
the parties, and its accompanying documentation (the "Software") under the
following terms and conditions:
1. License Grant. In consideration of Licensee's payment of the applicable
license fee, HAHT authorizes Licensee to install and use the Software and
its accompanying documentation solely on up to two (2) non-production
(i.e., devoted solely to development and testing) Scenario Server Clusters
and one (1) production (i.e., used in conducting business operations of
record) Scenario Server Cluster. An additional license fee must be paid for
installation and use on each additional Scenario Server Cluster beyond
those authorized above, including without limitation on any separate
Scenario Server Cluster that serves as a backup to a production Scenario
Server Cluster. A "Scenario Server Cluster" is defined as a group of one or
more computers that is connected to a common control host and accessed by a
common URL, and on which a copy of HAHTsite Scenario Server is currently
installed under a valid license granted to Licensee by HAHT. A copy of the
Software and its documentation may be made in their original,
installation-ready form for archival or backup purposes as long as it
contains all proprietary notices in their original form. If Licensee
receives one copy electronically and another copy on media, the copy on
media may be used only for archival purposes and this License does not
authorize Licensee to use that copy on another computer unless an
additional license fee is paid.
2. Restrictions on Use. Licensee may modify the Software and create derivative
works thereon solely for Licensee's own internal use. Licensee agrees that
it may not modify, translate, excerpt, adapt or create derivative works
with respect to the Software for any other purpose, except to the extent
applicable laws may specifically permit Licensee to do so. No portion of
the Software, its documentation or any derivative work based thereon may be
distributed, except internally within Licensee's own organization. Without
limiting the foregoing, Licensee may not include any portion of the
Software's source code (whether or not it has been modified) in any product
of Licensee or of any third party. Licensee may not rent, lease,
sublicense, grant a security interest in, or otherwise transfer Licensee's
rights to use and possess the Software, in whole or in part. Neither the
Software nor its documentation may be copied except as specified above.
Licensee may not make any copies of the documentation that is provided to
Licensee by HAHT in hard copy form. Licensee may not remove any proprietary
notices or labels on the Software or its documentation. Any rights not
granted are reserved to HAHT.
3. Term and Termination. This License shall begin on the Effective Date, and
shall continue until terminated: (a) by Licensee's voluntary termination;
or (b) automatically and without any further acts of either party upon
Licensee's breach of any term of this License. Any provision of this
License which gives rise to continuing obligations of the parties shall
survive termination of this License, including without limitation
Paragraphs 4, 5, 6, 10 and 13.
4. Actions Required Upon Termination. Upon termination of this License,
Licensee agrees to destroy all copies of the Software and its documentation
and certify, in writing, to HAHT said destruction, or return such copies to
HAHT. Licensee agrees that with respect to any copies that may exist after
termination on media containing regular backups of Licensee's computer or
computer system, Licensee shall not access such media for the purpose of
recovering the Software or documentation.
HAHT Commerce -- Confidential Page 1 of 5
5. Title. HAHT and its licensors shall have sole and exclusive ownership of
all right, title, and interest in and to the Software and all patches, bug
fixes, modifications and enhancements thereof, regardless of the form or
media in which the original or copies may exist, subject only to the rights
and privileges expressly granted by HAHT. The Software is copyrighted under
the laws of the United States and international treaty provisions. This
License does not provide Licensee with title or ownership of the Software,
but only a right of limited use.
6. Nondisclosure. Notwithstanding the copyright, Licensee acknowledges that
the Software, including its code, logic and structure, contains valuable
trade secrets and confidential information belonging to HAHT and its
licensors. Licensee agrees not to disclose or otherwise make available any
part of the Software to any third party on any basis.
7. Additional Software. This License grants to Licensee a limited right to
corrections and enhancements during the Warranty Period set forth in
Paragraph 9.1, but at no other time. This License does not grant to
Licensee any right to general product updates at any time. To the extent
that enhancements, corrections and updates are made available to and are
obtained by Licensee, they shall become part of the Software and be
governed by the terms of this License.
8. Export Controls. The Software, including its technical data, is subject to
U.S. export control laws, including the U.S. Export Administration Act and
its associated regulations, and may be subject to export or import
regulations in other countries. Licensee agrees to strictly comply with all
such regulations and acknowledges that Licensee has the responsibility to
obtain licenses to export, re-export or import the Software. None of the
Software, documentation or underlying information may be downloaded or
otherwise exported, directly or indirectly: (a) without prior written
consent, if required, by the office of Export Administration of the United
States, Department of Commerce; (b) to any national or resident of Cuba,
Iraq, Iran, North Korea, Libya, Sudan, Syria; (c) to any country to which
the U.S. has embargoed goods; (d) to any person on the U.S. Treasury
Department's list of Specially Designated Nations; or (e) to any person on
the U.S. Commerce Department's Table of Denials. By downloading the
Software Licensee is warranting that it is not located in, under the
control of, or a national or resident of any such country or appear on any
such list.
9. Limited Warranty.
9.1. HAHT warrants to Licensee that HAHT has not entered into any
agreement, nor is the Software subject to any lien encumbrance, that
would limit HAHT's full power and authority to enter into this
License. HAHT also warrants that if a defect occurs in the media on
which the Software is recorded within thirty (30) days after delivery
of the Software to Licensee (the "Warranty Period"), when the media is
used under normal circumstances, HAHT will replace such media if
returned by Licensee either during the Warranty Period (or within
seven (7) days thereafter, provided that notice of the defect is given
to HAHT within the last seven (7) days of the Warranty Period).
Finally, HAHT warrants that if during the Warranty Period the Software
fails to perform substantially in accordance with and as specified in
the accompanying documentation when operated in the designated
operating environment, and if HAHT receives a written report from
Licensee during the Warranty Period documenting any reproducible,
substantive error(s) in the unmodified Software, then HAHT shall, at
its option, use its reasonable good faith efforts to correct the
error(s) (which correction may include a change in the documentation),
or notify Licensee that in lieu of receiving corrections to the
reported errors HAHT will refund to Licensee all license fees paid to
HAHT with respect to the defective portion of the Software if Licensee
voluntarily terminates this License. After receipt of such notice
Licensee shall have seven (7) calendar days to determine if it wishes
to receive a refund and shall, within such seven-day period, return
all copies of the Software and otherwise comply with the terms of
Paragraph 4 if it wishes to terminate the License and receive the
refund. The foregoing shall be Licensee's sole remedy and recourse,
and HAHT's sole obligation, with respect to any asserted defect in the
media or Software, except as provided in Paragraph 9.3 with respect to
errors relating to date data.
9.2. Licensee shall be entitled, at no charge and during the Warranty
Period, to all generally-available corrections to the Software that
are made available to HAHT's subscriptions customers without
additional charge. In accordance with Paragraph 7, such corrections
shall be become part of the Software.
HAHT Commerce -- Confidential Page 2 of 5
9.3. Because HAHT controls neither the date data format nor the date data
manipulation functions used by the underlying operating systems (e.g.
Windows 95, Windows NT, UNIX) or by applications or databases that
communicate date data to the Software, HAHT does not warrant the
validity of any date data. Provided that such date data is valid upon
its communication to the Software, HAHT warrants that if the Software
corrupts the data due to century date changes or the data is not
stored by the Software in project files that use a format which
correctly handles the century date change, then HAHT will repair or
replace (through provision of a "patch" or an alternate version) such
portions of the Software as HAHT determines to be defective in its
handling of century date changes. The foregoing shall be Licensee's
sole remedy and recourse, and HAHT's sole obligation, with respect to
any asserted errors relating to date data.
9.4. HAHT does not warrant that (a) use of the Software will be
uninterrupted; (b) the Software will be error-free or that any or all
defects or errors will be corrected (except as provided in Paragraphs
9.1 or 9.3 with respect to errors relating to otherwise valid date
data); (c) functions contained in the Software will meet Licensee's
requirements; (d) the Software will operate in combination with other
software selected by Licensee; or (e) Licensee's use of the Software
will be secure (the Internet has inherent security challenges and
Licensee is solely responsible for determining whether the security of
the environment in which the Software will be used is sufficient for
its needs).
9.5. THE PROVISIONS OF THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU
OF ANY OTHER WARRANTIES OR REMEDIES, WHETHER EXPRESSED OR IMPLIED,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NON-INFRINGEMENT. NO VERBAL OR WRITTEN INFORMATION OR
ADVICE GIVEN BY HAHT OR ITS AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL
CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE ABOVE
WARRANTIES, AND LICENSEE SHALL NOT RELY ON ANY SUCH INFORMATION OR
ADVICE. THE FOREGOING WARRANTIES EXTEND TO LICENSEE ONLY AND SHALL NOT
BE APPLICABLE TO ANY OTHER PERSON OR ENTITY. THIS DISCLAIMER OF
WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE LICENSE.
10. Limitation of Liability.
10.1. HAHT'S LIABILITY FOR DAMAGES RESULTING FROM LICENSEE'S POSSESSION,
LICENSING OR USE OF THE SOFTWARE SHALL NOT EXCEED THE AMOUNT OF THE
LICENSE FEE ACTUALLY PAID BY LICENSEE, TO HAHT FOR USE OF ONE COPY OF
THE SOFTWARE.
10.2. In addition to the limitations set forth above, Licensee agrees that
ALL LIABILITY RELATED TO LICENSEE'S POSSESSION, LICENSING OR USE OF
THE SOFTWARE SHALL BE GOVERNED BY THIS LICENSE, AND IN NO EVENT SHALL
HAHT, OR ITS RESELLERS, LICENSORS OR SUPPLIERS, BE LIABLE TO LICENSEE
OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM BREACH OF
WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, OR
ANY OTHER LEGAL THEORY AS A RESULT OF LICENSEE'S POSSESSION, LICENSING
OR USE OF THE SOFTWARE, EVEN IF HAHT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR
LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, OVERHEAD COSTS, BUSINESS
INTERRUPTIONS OR WORK STOPPAGES, COMPUTER FAILURE OR MALFUNCTION, LOSS
OR RECREATION OF DATA, OR COST OF ANY SUBSTITUTE SOFTWARE.
11. Assignment. This License may not be assigned (including by operation of
law) or transferred by Licensee to any other person or entity.
HAHT Commerce -- Confidential Page 3 of 5
12. U.S. Government Restricted Rights. The Software and its documentation are
"commercial computer software" and "commercial computer software
documentation," respectively, and are provided with RESTRICTED RIGHTS under
Federal Acquisition Regulations and agency supplements to them. Use,
duplication or disclosure by the U.S. Government is subject to restrictions
as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and
Computer Software clause at DFAR 255.227-7013 et. seq. or 252.211-7015, or
subparagraphs (a) through (d) of the Commercial Computer Software
Restricted Rights at FAR 52.227-19, as applicable, or similar clauses in
the NASA FAR Supplement. Contractor/manufacturer is HAHT Commerce, Inc.,
000 Xxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000.
13. Entire Agreement. This License represents the complete agreement concerning
this License, and may only be amended by a document executed by both
parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY LICENSEE IS
EXPRESSLY MADE CONDITIONAL ON LICENSEE'S ASSENT TO THE TERMS SET FORTH
HEREIN, AND NOT THOSE IN THE PURCHASE ORDER FORM, AND LICENSEE AGREES THAT
ANY SUCH ADDITIONAL OR DIFFERENT TERMS ARE VOID. If any term of this
License shall be found invalid, the term shall be modified or omitted to
the extent necessary, and the remainder of the License shall continue in
full effect. This License shall be construed in accordance with the laws of
North Carolina (excluding conflicts of laws provisions and the United
Nations Convention on Contracts for the International Sale of Goods), and
all disputes relating to this License shall have exclusive venue in the
federal and state courts in Wake County, North Carolina and Licensee agrees
to the jurisdiction of these courts.
Agreed and Accepted:
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For Insert company name For HAHT Commerce, Inc.
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Signature: Signature:
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Name & Title: Name & Title:
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Date: Date:
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Non-Executable Copy
HAHT Commerce -- Confidential Page 4 of 5
Non-Executable Copy
HAHT e-Scenario(TM) License Agreement
Schedule A
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[enter e-Scenario software being purchased]
Agreed and Accepted:
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For Insert company name For HAHT Commerce, Inc.
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Signature: Signature:
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Name & Title: Name & Title:
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Date: Date:
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Non-Executable Copy
HAHT Commerce -- Confidential Page 5 of 5
